State v. Newton

• Decision Date: 16 July 1997
• Docket Number: No. A97A0104,A97A0104
• Parties: , 97 FCDR 2908 The STATE v. NEWTON.
• Court: Georgia Court of Appeals

Page 147

489 S.E.2d 147

227 Ga.App. 394, 97 FCDR 2908

The STATE v. NEWTON.

No. A97A0104.

Court of Appeals of Georgia.

July 16, 1997.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellant.

Zell & Zell, Glenn Zell, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Defendant Newton is charged by indictment with four violations of the Georgia Controlled Substances Act (three of these offenses are trafficking, possession with intent to distribute, and distribution of the Schedule II controlled substance methamphetamine, as well as possession of hydromorphone, another Schedule II controlled substance), aggravated assault upon a peace officer, and obstruction or hindering a law enforcement officer. The State appeals the grant of defendant's motion to suppress evidence. Held:

1. On January 15, 1996, at approximately 6:30 a.m., Douglas County Deputy Sheriff Williams while on routine patrol observed a car stopped in the parking lot of a closed store just off an interstate highway. The vehicle contained a driver and defendant, who was the sole passenger.

The deputy drove up to the vehicle and asked the driver whether there was a problem. The driver advised that they had run out of gas and coasted into the parking lot. After that inquiry, the deputy did not stop the men but withdrew across the road and watched them as they drove immediately to a nearby gas station and convenience store where the driver began pumping gasoline into the car.

The deputy drove in behind the car, put on his blue lights, and approached the driver to ask for identification and proof of insurance. After this was provided, the deputy asked and received consent of the driver to search the car. Meanwhile, defendant, who had entered the convenience store, walked back out, and a second deputy sheriff had arrived at the scene.

Deputy Williams proceeded to attempt to pat down defendant. During this pat-down the officer discovered syringes which defendant explained by stating that he was diabetic. The deputy removed defendant's wallet and found two Georgia driver's licenses under different names but both bearing defendant's photograph. Upon the deputy's discovery of the multiple driver's licenses and some discussion about defendant's identity, defendant bolted and ran. Deputy Williams chased defendant, at times losing sight of him, and finally caught him. The two men fought, and during the course of the fight Deputy Williams was sprayed in the face with pepper spray and defendant received a gunshot wound. After the altercation, contraband was discovered on the ground in the vicinity of the fight.

The superior court determined that Deputy Williams had no articulable suspicion that defendant or the driver of the vehicle had committed any crime, that defendant's conduct in being uncooperative with Deputy Williams did not indicate any threat to the officer, that defendant did not consent to the search of his person, that Deputy Williams exceeded the scope of a Terry pat-down (see Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889) when he removed the wallet and looked inside it, and that defendant's flight was in direct response to what the deputy saw inside the wallet. The superior court concluded that all evidence developed from the time of looking inside the wallet be suppressed.

The State argues that the superior court erred in determining that Deputy Williams had insufficient legal grounds to detain and search defendant. The superior court found that the deputy "had no articulable suspicion that the [driver or defendant] had committed any crime." This conclusion was apparently based on the inconsistency between the vehicle occupants' report of running out of gas and their subsequent conduct in driving to the nearby gas station to refuel. The prosecution argues that the vehicle occupants' explanation is inherently suspect since the deputy testified that the motor was running in their car at the time this explanation was proffered. But as defense counsel aptly pointed out during the motion hearing, then why did Deputy Williams not confront the vehicle occupants with this inconsistency? On cross-examination, Deputy Williams stated that even though the motor of the vehicle was running he was letting the driver tell his story and did not raise this question. Nonetheless, these and other issues argued with regard to whether the deputy had articulable suspicion need not be addressed since the superior court presumed in reaching its decision that the deputy had authority to pat down defendant during the consent search of the vehicle. The issue on appeal may be limited to whether the superior court was authorized to conclude that the deputy had exceeded the proper scope of the pat-down search.

A Terry pat-down is generally a two-step process. The officer must pat down first and then intrude beneath the surface only if he comes upon something which feels like a weapon. In order to exceed a pat-down without first discovering a weapon, an officer must provide specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down. Clark v. State, 208 Ga.App. 896, 899(2), 900, 432 S.E.2d 220 (non-precedential); Brown v. State, 181 Ga.App. 768, 770(1), 353 S.E.2d 572.

More invasive procedures have been approved where an officer has had a reasonable basis for concluding that a suspect was armed or was otherwise a threat to his personal safety. See Hayes v. State, 202 Ga.App. 204, 414 S.E.2d 321. Predicated upon defendant's failure to fully cooperate with the pat-down, the prosecution argues that Deputy Williams was authorized to use the more invasive procedures. The deputy explained that defendant failed to keep his hands up above his head and this rendered the pat-down more difficult to accomplish. The superior court characterized defendant's behavior as "not friendly to the officer" and questioning of the deputy's intrusion upon him. Based upon the deputy's testimony and a videotape of the pat-down, the superior court determined that defendant's response did not represent any threat to Deputy Williams. "On reviewing a trial court's ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga.App. 732, 735(3), 394 S.E.2d 639 (1990)." Burse v. State, 209 Ga.App. 276, 433 S.E.2d 386. Since the evidence authorized the finding that defendant was non-threatening, the absence of the exigent circumstances identified in Hayes precluded the intrusion into defendant's wallet. Barrett v. State, 212 Ga.App. 745, 748, 443 S.E.2d 285; Wyatt v. State, 151 Ga.App. 207, 210(1)(a), 259 S.E.2d 199. The superior court correctly concluded that the deputy exceeded the proper scope of a Terry pat-down.

2. The prosecution contends that defendant lacked standing to contest the seizure of contraband in the wooded area near where the altercation occurred between defendant and the deputy. While the deputy did not observe defendant discarding anything, we cannot agree with the prosecution argument that there is no evidence that defendant threw the contraband down as a direct result of the illegal search by Deputy Williams. The evidence of record while circumstantial certainly suggests this scenario, and this appears to be the view of the evidence embraced by the superior court as trier of fact. Even though defendant had no expectation of privacy in the wooded area, such is not determinative of the matter. The discovery of this contraband being the direct product of the prior unauthorized search of defendant's person, it must be suppressed. Any question of abandonment of the contraband as argued by the State is a factual question of intent which has been resolved in favor of defendant. Orman v. State, 207 Ga.App. 671, 672(1), 428 S.E.2d 813. See also State v. Brown, 198 Ga.App. 239, 240, 401 S.E.2d 295.

3. The State's reliance upon California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 is misplaced. The extremely narrow issue addressed in the Hodari D. decision must be noted. The Hodari D. case defines when an arrest has occurred. The portion of that opinion referenced by the prosecution illustrates that during the interval of time defendant was fleeing from Deputy Williams, he was neither seized nor under arrest. However, no one has suggested otherwise. The suppression of evidence in the case sub judice is predicated upon a conclusion that the State's seizure of the contraband was the product of the preceding illegal search. In the U.S. Supreme Court case there was no seizure or arrest of the juvenile being pursued prior to abandonment of the contraband and thus no instruction on the issues presented in the case sub judice.

4. United States v. Bailey, 691 F.2d 1009 (11th Cir.) also offers no support to the prosecution since the portion of the holding in this federal case upon which the prosecution relies is predicated upon the abrogation of the common law rule that one may forcibly resist an illegal arrest, a rule which remains the law of the State of Georgia. Brooks v. State, 206 Ga.App. 485, 489(2), 425 S.E.2d 911. Thus, in Bailey there was no right to resist an initial illegal arrest, resulting in a valid second arrest for resisting the illegal arrest, the second arrest being held to be a proper basis for a search incident to arrest. We would also note that much of the remainder of the Bailey opinion is supportive of the judgment entered by the superior court.

Anticipating that we might recognize this distinction between state and federal law, the prosecution maintains that the initial seizure of defendant was not an arrest but merely a Terry stop and that while there may be a right to resist an illegal...